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464 LIMITATIONS ON EXCLUSIVE RIGHTS: FAIR USE
1976 Act, rather than merely an affirmative defense, as it is defined in the Act as a use
that is not a violation of copyright. However, fair use is commonly referred to as an
affirmative defense, and, as we are bound by Supreme Court precedent, we will apply it
as such. Nevertheless, the fact that the fair use right must be procedurally asserted as an
affirmative defense does not detract from its constitutional significance as a guarantor to
access and use for First Amendment purposes” (emphasis in original). What difference
does it make if fair use is considered an affirmative right rather than merely a defense to
copyright infringement? Judge Birch says that fair use is “defined in the [Copyright] Act
as a use that is not a violation of copyright.” Look at the language in sections 106 and
107. §106 begins “Subject to sections 107 through 122, the owner of copyright under this
title has the exclusive rights to do and to authorize any of the following…” §107 is titled
“Limitations on exclusive rights: Fair use” and begins “Notwithstanding the provisions of
section[] 106… the fair use of a copyrighted work… is not an infringement of copyright.”
Does any of this language support Judge Birch’s conclusion? Do you agree with him?
PROBLEM 13-2
You represent The New York Times. One of its reporters has just found a diary apparently
belonging to Special Prosecutor Jonathan Edwards. Edwards is well-known
because his recent investigations actually led to the impeachment, but not the conviction,
of the President on charges of perjury and obstruction of justice. The prosecution
was highly controversial and—in an unusual step—Edwards also released the full text
of “the Edwards Report” online, complete with all of the embarrassing details of the
President’s relationship with a White House intern. Critics claimed he was trying to
win a battle in the courts of public opinion that he would not win in Congress.
Defenders praised him as operating in the noble tradition of whistle blowers who
exposed presidential scandals such as Watergate.
In the diary, Edwards, in his famous and characteristically Biblical writing style,
describes in apocalyptic and profanity-laden terms his envy of the President’s hair, wife
and status, and his distaste for the President’s morals, and repeats many times his belief
that “extremity in the pursuit of scoundrels is no vice.” The tone is very different from
the bland and regretful official prose of the Edwards Report. The New York Times reporter
has planned an article, accompanied by a two page special pull-out, reproducing several
thousand words of the diary verbatim in small print (in the style of the Unabomber
manifesto) just to, as he says, “give the readers a true sense of his tone that they just
cannot get any other way. It is the only way to show the reader the truth while freeing us
from the claim that The Times is being selective or biased in what it excerpted!” He wants
your opinion on this course of action. Alternatively, the reporter has planned an article
which intersperses the wording of the Edwards Report sent to Congress with the profane
fulminations of Edwards’ diary—to ludicrous effect, it has to be said. Edwards’ lawyers
will move for an injunction to prevent publication. The reporter wants your advice on
both courses of action. What are your answers regarding the construction of the article,
and possible fair use claims? How would your answers be different if the excerpts came
from a purloined copy of Edwards’ much-anticipated forthcoming autobiography, “Bill”
of Attainder? In either case, would an injunction against publication have to meet certain
First Amendment standards to avoid being a prior restraint of speech?